Polish judges at the ECHR: power struggle between the Council of Europe and Poland

Originally published on the website of the European Center for Law and Justice on 24 January 2023.

In the coming days, the Parliamentary Assembly of the Council of Europe is due to elect the Polish judge who will sit on the European Court of Human Rights (ECHR) for the next nine years. This judge, appointed from a list of three candidates presented by the conservative government in place in Warsaw, is to replace the incumbent Polish judge, Krzysztof Wojtyczek, whose mandate expired on 31 October 2021.

Elected in 2012 from among the candidates put forward by the liberal government of Donald Tusk, Wojtyczek remains in place until a new judge is elected. The problem is that, as of today, the Parliamentary Assembly of the Council of Europe has already twice rejected the list of candidates submitted by Poland, thus following the recommendations of the Assembly’s special Committee on the Election of Judges, which in turn followed the recommendations of the Council of Europe’s Advisory Panel of Experts. And it is to be feared that the third list proposed by Poland will suffer the same fate as the first two. The question today is whether there is an issue with the Polish government stubbornly presenting “bad” candidates, or whether it is the Parliamentary Assembly, its special Committee on the Election of Judges, and the Advisory Panel that have a political or ideological approach to the procedure of appointing judges to the ECHR and refuse conservative candidates on principle. It should be noted in passing that the Advisory Panel is a body that does not appear in the European Convention on Human Rights, but was established by a resolution of the Committee of Ministers.[1] Being composed of former judges, this Panel maintains close links with the Registry of the ECHR.

Most people are aware of the impact ECHR rulings have on national legislation, and of the Court’s annoying tendency sometimes to go very far in its interpretation of the European Convention on Human Rights, in the light of which it is called upon to rule against the signatory States. Poland, in particular, is at the centre of a battle over abortion that is being fought before the Strasbourg judges. As the ECLJ revealed in 2020 and as was later acknowledged by the Council of Europe, many of those judges have or have had links with NGOs involved in cases put before the Court, and in particular with NGOs linked to George Soros’ Open Society Foundations. Hence, there is no doubt that, as in the case of the Court of Justice of the European Union (CJEU), the ideological sensibility of the judges sitting in the ECHR – rather liberal or rather conservative, or alternatively, rather in favour of increasing the weight of international institutions or rather sovereignist and attached to the letter of the treaties – is of fundamental importance. As far as Poland is concerned, in view of the polls in the run-up to the parliamentary elections in the autumn of 2023, it cannot be ruled out that the Parliamentary Assembly of the Council of Europe is seeking to “play for time” by rejecting successive lists proposed by the Polish government in the hope that it will soon be offered candidates who are more in line with the expectations of the ruling majority in Strasbourg, by a Polish government with a more “left-wing” sensibility than the current one.

The first list of candidates submitted by Poland was rejected on 14 April 2021, and the second was rejected on 19 January 2022. The Assembly’s special Committee on the Election of Judges was scheduled to vote on the third list on Thursday, 12 January 2023, but this agenda item was ultimately skipped and the discussion postponed until the next session of the Parliamentary Assembly of the Council of Europe, scheduled for 23–27 January. The main criticism levelled at Poland when its first list of candidates was rejected in 2021 was the lack of transparency in the selection procedure for the three candidates presented. This is a point the Helsinki Foundation for Human Rights – one of the most influential NGOs in the Council of Europe and a major beneficiary of funding from George Soros’ OSF – had insisted on when asking the Parliamentary Assembly and its Special Committee to reject the Polish list.

The Polish ministry of foreign affairs, which is the ministry in charge of preparing the list of three Polish candidates from which the Parliamentary Assembly of the Council of Europe has to choose one to become an ECHR judge for nine years, therefore repeated the procedure, inviting non-governmental organizations, including those representing the legal profession, to attend the process and the hearings of the candidates if they wished. Fifteen organizations, including the Helsinki Foundation, were thus able to observe the interviews with the candidates and comment publicly on the manner in which those interviews were conducted, provided they did not divulge any information that might disclose some of the candidates’ personal data, as only a few of them wished to make their identity known publicly at that stage. However, the three candidates from the first list were chosen again by the selection committee, formed by the Ministers of Foreign Affairs and Justice, the Head of the Prime Minister’s Chancellery and the President of the General Counsel to the Republic of Poland (Prokuratoria Generalna).[2]

In April 2021, the special Committee of the Parliamentary Assembly of the Council of Europe on the Election of Judges recommended the rejection of the list “in view of the national selection procedure not being in line with the standards required by the Assembly and the Committee of Ministers”.[3] In January 2022, having been presented with the same list after a procedure that had been made more transparent in response to its objections, the Parliamentary Assembly’s special Committee on the Election of Judges recommended to the Assembly “to reject the list as not all candidates fulfil the requirements of Article 21 of the European Convention on Human Rights for election as a judge at the European Court of Human Rights and to request the Government of Poland to submit a new list of candidates.”[4]

It should be noted in passing that for the French version of the above-mentioned progress reports and elsewhere on its website and in its documents, the Parliamentary Assembly of the Council of Europe now uses “gender-inclusive” writing, thus showing, in addition to its contempt for the rules of grammar and spelling of the French language, its adherence to a very specific ideology which is certainly not the one adhered to by the current Polish government and its parliamentary majority. French and English are the Council of Europe’s two official languages. That said, the public and journalists will not know more than what is stated in the quote copied above from the special Committee’s progress report, as the reasons for rejection of candidate lists are confidential. In other words, while the Polish government has been required to be transparent in its selection procedure for the proposed candidates to replace the incumbent Polish judge at the ECHR, the Parliamentary Assembly of the Council of Europe, which is responsible for electing one of the three proposed candidates, is not subject to this transparency requirement.

Nor will it be clear from a reading of Article 21 of the European Convention on Human Rights what exactly prompted the Special Committee of the Parliamentary Assembly to recommend again that the list of candidates proposed by Poland be rejected. This article only states in general terms that “the judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence” and also that “during their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office”. As for the following article (22), it simply states that “The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party.” If this last provision on the election of judges were to be interpreted strictly, the Parliamentary Assembly should have no choice but to appoint a judge to the ECHR from among the three candidates proposed by the government of the country filling a vacancy.

Who are the three twice-rejected candidates?

What is known unofficially is that of the three candidates chosen by the Selection Committee set up by the Polish government, one candidate was considered insufficiently qualified because she holds an “insufficiently high” position in the Council of Europe, and another was considered too “political” because her husband is an MEP from the Law and Justice party (PiS), the main force in the coalition governing Poland since 2015. The third candidate is currently a professor of law at Warsaw University and a Supreme Court judge,[5] and his candidacy was also considered too political because he had served for nine months as Under Secretary of State for Human Rights at the Polish foreign ministry in 2015–16. Perhaps his candidacy was also perceived as too ideological because of his status as co-founder and former chairman of the Ordo Iuris Institute for Legal Culture, a Polish organization of pro-family and pro-life lawyers and legal practitioners (although such links with less conservative NGOs have not prevented a large number of candidates presented by their respective countries over several decades from being elected by the Parliamentary Assembly of the Council of Europe to sit on the ECHR, as the ECLJ revealed in its report published in February 2020[6]).

The three candidates, whose legal education is not questioned, are, respectively, Agnieszka Szklanna, Elżbieta Karska, and Aleksander Stępkowski. Szklanna obtained her doctorate in law in 2008 with a thesis on “Aliens’ protection under the case law of the European Court of Human Rights”, after she had passed her bar exam at the Warsaw Bar Association in 2004. She also holds a degree in advanced European studies and a master’s degree in applied linguistics for the translation of English and French, the two official languages of the Council of Europe that any candidate for the position of ECHR judge must know. Since 2009, she has held the position of Secretary to the Committee on Legal Affairs and Human Rights at the Secretariat of the Parliamentary Assembly of the Council of Europe in Strasbourg, and has had regular publications in legal journals. Apparently, it is this candidacy that is considered by the Parliamentary Assembly of the Council of Europe not to fulfil all the requirements of Article 21 of the Convention on Human Rights (“possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”). In this regard, it is interesting to read the description made of this candidate in the newspaper Gazeta Wyborcza, which is very hostile to PiS and which also favours a rejection of the lists of candidates proposed by the Polish government. According to Gazeta Wyborcza, this description of Agnieszka Szklanna is a quote from “a lawyer close to the ECHR”: “Hardworking, competent. She speaks English and French very well. She is also a devout Catholic with conservative views. I wouldn’t be surprised if she was sympathetic to PiS from a national-religious position, but I don’t think her candidacy stems directly from political support.” [7] One may wonder, however, whether the Parliamentary Assembly does not have a “structural” problem with candidates coming from the Council of Europe’s bodies, as the same problem has also occurred in the past with candidates from other countries (Ukraine, Georgia, Serbia, and Greece), with the notable exception of the Russian candidate Mikhail Lobov, who was elected to the post of ECHR judge in September 2021 after 24 years with the Council of Europe.

As mentioned above, the other two candidacies are considered only to be too “political”. This is despite the fact that on other occasions judges have been appointed to the ECHR who have held positions in the ministries of the nominating governments or have a spouse in a political role. In the case of Aleksander Stępkowski, one may legitimately wonder, in view of the positions adopted by the Parliamentary Assembly of the Council of Europe and also by the ECHR, whether his appointment in 2019 by President Andrzej Duda to the Polish Supreme Court, upon the proposal of the National Judicial Council after its 2017 reform, was also perceived as an obstacle to his appointment to the ECHR.

The third list

For the third list of candidates submitted by Poland, which will now be considered by the Parliamentary Assembly of the Council of Europe, the candidacies of Agnieszka Szklanna and Elżbieta Karska have been retained, but Aleksander Stępkowski has been replaced by Doctor of Law Kamil Strzępek, who, like Professor of Law Elżbieta Karska, teaches at Cardinal Stefan Wyszyński University in Warsaw. In addition to being an academic and legal scholar, Elżbieta Karska has held high judicial office. Apart from heading the Institute of International Law, European Law and International Relations at Cardinal Stefan Wyszyński University, she has been, among other things, a member of the Permanent Court of Arbitration in The Hague since 2018, and served as an ad hoc judge of the ECHR in Strasbourg from 2010 to 2012 and since 2018. Kamil Strzępek has served in the past as a lawyer at the ECHR and the Polish Higher Administrative Court (NSA). Since 2017, he has been serving as an assistant to a judge at the Polish Constitutional Court.

To get an insight into the reasons for the Polish list’s two previous rejections, and perhaps its upcoming third rejection, without having access to the confidential explanations of the Parliamentary Assembly of the Council of Europe, the easiest way is to consult the report published in May 2022 by the Polish NGO Helsinki Foundation for Human Rights,[8] which actively lobbied for the Advisory Panel and the special Commission on the Election of Judges to reject these lists. After the progress made on transparency following the first rejection of the Polish list in April 2021, which has been acknowledged by the Helsinki Foundation itself, there allegedly remains a problem of “imbalance” in the Polish selection committee, all of whose members were appointed by branches of the executive. The Helsinki Foundation would like this committee to include representatives of the judiciary and NGOs in order to make it independent of the government, as is done in some of the Council of Europe’s member countries. This call was joined, before the rejection of the first list, by the then Polish Ombudsman Adam Bodnar, who had been appointed to his post by the previous parliamentary majority.[9] Both Bodnar and the Helsinki Foundation, however, have admitted in their writings that this problem of “imbalance” of the selection committee already existed at the time of the election of the Polish ECHR judge in 2012, during the Donald Tusk era. Moreover, Bodnar and the Helsinki Foundation base their reproaches not on mandatory standards but on “recommendations” issued by the Council of Europe. In other words, they would like to make these recommendations mandatory, which would give them more influence over the composition of the list. The Helsinki Foundation also points to the presence of a representative of the Foundation Centre for the Support of Life and Family Initiatives,[10] whose conservative views on the family are considered “homophobic”, as an element of “imbalance” in the selection committee set up by the Polish minister of foreign affairs. However, what best sums up the position of the Helsinki Foundation, and most likely reflects the position of the majority in the Parliamentary Assembly of the Council of Europe when the Polish lists were rejected, is the view expressed in the following words in the Helsinki Foundation’s report:

“Of course, the Helsinki Foundation for Human Rights is aware that, according to the standards of the Council of Europe bodies, selections made by entities entirely composed of representatives of the executive (as for example in Spain) are not automatically considered flawed. Nevertheless, according to the Foundation, the current rule-of-law crisis in Poland considerably increases the risk of illegal pressure in such a situation. ”

In other words, what can be accepted from other member countries of the Council of Europe should not be accepted from a country like Poland, where voters have brought a conservative government to power.

By way of comparison, in 2014 the Helsinki Foundation did not denounce the irregularity of Yonko Grozev’s nomination on the Bulgarian list of candidates to the ECHR, although the Bulgarian selection committee included two of Grozev’s close colleagues, and Grozev became an ECHR judge succeeding another of his former colleagues from the same NGO, which happened to be the Helsinki Foundation(!) – as has been revealed by the ECLJ.

The Polish authorities are therefore probably right to consider themselves within their rights and to see primarily political and ideological motivations behind the rejection of their lists of candidates. In its written position published after the first rejection of its list of candidates in April 2021, the Polish foreign affairs ministry expressed surprise that the Polish procedure accepted by the Parliamentary Assembly in 2012 was no longer accepted in 2021, despite the fact that it closely resembled the procedures followed not only in Spain, but also in Germany and Austria.

Nevertheless, the political situation being what it is in the Parliamentary Assembly of the Council of Europe, and even if one may wonder whether the attitude of this Parliamentary Assembly is in conformity with the European Convention on Human Rights, would it not be better for the Polish government, rather than going into a head-on confrontation by again proposing two candidates who have already raised the objections of the Consultative Panel and the special Committee on the Election of Judges, to select candidates whose competence cannot be doubted, and who at the same time have no formal link with Poland’s current parliamentary majority? If Poland’s list of candidates is rejected for a third time this January, the Morawiecki government’s last chance to have a conservative judge appointed to the ECHR before the Polish parliamentary elections in the autumn – whose outcome is uncertain – will come in June or October, during the next sessions of the Parliamentary Assembly of the Council of Europe.

It would be a real shame to miss such an opportunity to alter the balance – albeit only by a small amount – in the European Court of Human Rights!

Patryk Regalski

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[1] Resolution CM (2010)26 (available here)

[2] The procedure for the selection of the three candidates presented by the Polish government is described in a letter from Zbigniew Rau, Minister of Foreign Affairs of the Republic of Poland, to Despina Chatzivassiliou-Tsovilis, Secretary General of the Parliamentary Assembly, dated 6 December 2021 (available here).

[3] Progress report of the Special Commission, doc. 15263 Add. 2, 14 April 2021 (available here).

[4] Progress report of the Special Commission, doc. 15439 Add. 2, 19 January 2022 (available here).

[5] http://www.sn.pl/en/about/SitePages/biografia_en_astepkowski.aspx

[6] A report entitled “NGOs and the Judges of the ECHR – 2009–2019” (available here)

[7] Article published on 10 January 2023 under the title: “A third list of Polish candidates to Strasbourg. And once again, the wife of a PiS MEP is included.” “(available here).

[8] A report entitled “European Courts – National Choices / National Procedures for the Selection of Candidates for Judges of the Court of Justice of the European Union and the European Court of Human Rights” (available here in Polish). In spite of its title, this report focuses solely on the selection of candidates in Poland.

[9] Letter of Ombudsman Adam Bodnar to Foreign Affairs Minister Zbigniew Rau, dated 9 November 2020 (available here in Polish)

[10] Fundacja Centrum Wspierania Inicjatyw dla Życia i Rodziny.